Research On The Relationship Between Indirect Patent Infringement And Direct Patent Infringement

Patent indirect infringement cases have been growing rapidly in recent years,and the relationship between patent indirect infringement and direct infringement has often become the focal point of disputes.Through sorting out patent protection system of china,indirect patent infringement cases should be dealt with according to the provisions of joint infringement in the civil tort law,and indirect patent infringement should be based on the premise of direct infringement,that is to say,the judicial interpretation promulgated in 2016 also reiterated this position.It also stipulates that aiding infringement and enticing infringement shall constitute an act of patent infringement by others.However,in judicial practice,including the Supreme People’s Court,many judgments skip the identification of direct infringement and directly judge the establishment of indirect infringement.Theoretically,the above issues reflect the contradiction between the subordinate theory and the independent theory of indirect patent infringement,that is,whether indirect infringement can be constituted separately when some direct infringement is not established.Through the analysis of the two theories,the subordinate theory is more in line with the "comprehensive coverage principle",and can prevent the abuse of patent right and protect the public interest.The independence argument is more thorough in the protection of rights and more economical.Therefore,it is more practical to balance the advantages and disadvantages of dependent theory and independent theory to form a compromise theory.From the perspective of comparative law,both the United States and Japan adopt the subordination theory and the independent theory of legislation.In combination with the legal system of the two countries,no matter the subordination theory with exceptions or the independent theory with conditions,they are all represented by this stance.In principle,the American patent law requires that the indirect infringement is premised occurs outside the country and for private use is taken as an exception.Japan will help the tort regulation in the franchise law,without the premise of direct infringement,induced infringement by civil law regulation.This eclectic legislative model is very different from the absolute subordination theory adopted in article 21 of Judicial Interpretation(II).Finally,on the relationship between indirect infringement and direct infringement,we should take the compromise theory as the guide,learn from other national laws,and legislate indirect patent infringement to meet the needs of judicial practice.For the aid indirect torts with strict material requirements,the act of supplying special supplies greatly increases the probability of damaging results and has liability.If the oblige can prove that the patented materials,equipment,parts and intermediates are specialized articles without substantive non-infringing use,and the actor has the subjective fault of production and operation for the purpose of facilitating infringement,direct infringement can be presumed to exist,but it is not suitable to apply in the case of specialized articles exported to foreign countries at present.The inductive indirect torts should be based on the actual direct torts,and the court should recognize the direct torts at the same time when determining the inductive torts.In terms of legislative design,assisting indirect infringement can be regarded as a special form of joint infringement in patent law,while inducing indirect infringement does not have this particularity.Japan’s "dual legislation model" can be used for reference to regulate assisting infringement in patent law,and inducing infringement can be dealt with by joint infringement rule in Article 1169 of the Civil Code.